Gujarat High Court
Kadlubhai Bhagubhai Patel vs Bahadubhaikalabhai on 20 September, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/14050/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14050 of 2018
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KADLUBHAI BHAGUBHAI PATEL
Versus
BAHADUBHAIKALABHAI
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Appearance:
MS MEGHA JANI(1028) for the PETITIONER(s) No. 1,2,2.1,2.2,2.4,3
for the RESPONDENT(s) No.
1,2,3,4,4.1,4.2,4.3,4.4,4.5,4.6,4.6.1,4.6.2,4.6.3,4.6.4,4.7,4.8
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 20/09/2018
ORAL ORDER
Heard learned advocate Ms.Amrita Patel for learned advocate Ms.Megha Jani for the petitioners.
2. In this petition filed under Article 227 of the Constitution, what is brought under challenge is order dated 17th July, 2018 passed below application Exh.30 by learned Additional Civil Judge, Botad in Regular Civil Suit No.117 of 2015. The said application was an application filed by the plaintiffs-respondents herein under Order XXVI Rule 19 of the Code of Civil Procedure, 1908 for carrying out measurement of land bearing revenue survey No.32 Paiki as well as revenue survey No.33 Paiki to determine the area thereof as well as possession of the respective party by the competent authority of the District Inspector of Land Revenue Office, Botad.
3. The case of the plaintiffs in their suit was Page 1 of 4 C/SCA/14050/2018 ORDER that land bearing Survey No.32 Paiki 1 as well as land bearing Survey No.33 Paiki 1 belonged to them. It was the case that between these two lands there is no way (shedho). Out of the total area of land bearing Survey No.32 Paiki 1 which was Hectare 07-40- 58, the plaintiffs sold off part of the land admeasuring Hectare 06-74-82 and the remainder part continued to be of in their ownership. As far as other Survey No.33 Paiki is concerned, the same came to be sold by the plaintiffs to the defendants by executing a sale deed. In the suit, it was the allegation of the plaintiffs that the defendants had encroached part of the land of Survey No.32 Paiki 1 which remained with the plaintiffs treating such part within the area of land bearing Survey No.33 Paiki 1. It was the case that such encroachment was on South- East portion.
3.1 By filing application for carrying out the measurement, it was submitted that if the measurement of both the lands are carried out, it could reveal the correct position of the possession and the precise measurement of the portion under dispute.
4. Learned advocate for the petitioners submitted that the court below was not justified in ordering the measurement as prayed for. It was submitted that the plaintiffs were required to prove their case and the measurement was not necessary. Learned advocate for the petitioner further relied on decision of Madras High Court in Muthusamy Gounder v. Mylsmy Gounder [2006 (5) CTC 433], in which case the Page 2 of 4 C/SCA/14050/2018 ORDER court commissioner was appointed to aid the court to assess the evidence. It was held that the court could not have appointed advocate commissioner in mechanical manner. It was noted that the revenue officials have already demarcated the area.
5. While allowing the application of the plaintiffs below Exh.30, the Court took into account the nature of the controversy in the suit, the relief prayed for by the plaintiffs and gave reasons for which the measurement by the District Inspector of Land Record was requested by the plaintiffs. It was noted that earlier such application was not made by the plaintiffs and that the measurement was to be carried out as per the prayer for the first time. It was denied that earlier any measurement-sheet was prepared. Though Sruveyor of the Land Record Office had measured land bearing Survey No.33 Paiki on some earlier occasion, the same was not done in the presence of the parties and even otherwise, the said measurement-sheet did not reflect anything about the area and the measurement of the disputed land.
5.1 The powers were exercised by the learned Judge below under Order XXVI Rule 9 and 10, CPC, which provided for commission for local investigation. Under Rule 9 of order XXVI it is provided that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating value of the property etc., the Court may issue Commission. In other words, the appointment of Court Commissioner is permissible for Page 3 of 4 C/SCA/14050/2018 ORDER the purpose of elucidating any matter in dispute.
5.2 When the suit was for clearance of encroachment and the possession of the disputed portion of the land in question was to be traced out and in that light the question whether the defendants had encroached the land or not was thrashed out in light of the evidence to be adduced by the defendants, the measurement of the land could be said to be for the purpose of "elucidating the matter in dispute".
6. The Court, in the facts and circumstances of the case and after noticing relevant aspects of the matter, found it fit to have the measurement from the competent authority. The discretion exercised by the Court to employ powers available to it under Order XXVI Rule 10 is not in any way irregular, much less perverse. No case is made out to interfere in the order in exercise of superior jurisdiction of this Court under Article 227 of the Constitution.
7. Hence, the petition is dismissed.
(N.V.ANJARIA, J) Anup Page 4 of 4